Free movement of goods

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The free movement of goods , including the free movement of goods , is one of the four fundamental freedoms of the European Union . It is regulated in Articles 28 to 37 of the Treaty on the Functioning of the European Union (TFEU).

The free movement of goods aims to protect the European internal market . To this end, it prohibits the member states from certain types of behavior which disadvantage trade in goods from other member states, i.e. which have a protectionist effect. These include customs duties , import and export restrictions as well as measures that have a comparable effect.

Like some areas of Union law, the understanding of the free movement of goods is largely shaped by the case law of the European Court of Justice (ECJ). The rulings Dassonville , Keck and Cassis de Dijon are among the key decisions for the free movement of goods .

scope of application

The scope of application of the free movement of goods is opened in accordance with Art. 28 Paragraph 2 TFEU, provided that goods are present. The concept of goods is not defined by the TFEU. According to the case law of the European Court of Justice, this is a physical object that has a market price and can be the object of commercial transactions.

Article 28 (2) TFEU covers two types of goods: those that originate in the Member States and those that come from third countries and are in the free movement of goods in the Member States. Goods that are not allowed to be traded under international and Union law are not protected . This applies to numerous narcotics , for example .

Customs union

According to Art. 28 Paragraph 1 TFEU, the European Union comprises a customs union . This consists of two elements: the ban on the collection of customs duties and similar charges and the introduction of a common customs tariff for non-member states.

Prohibition of internal customs duties, Art. 30 TFEU

Import and export duties or charges having equivalent effect are prohibited between Member States. This ban also applies to financial tariffs.

Art. 30 TFEU ​​prohibits member states from levying customs duties on the import and export of goods. This prohibition covers all financial burdens that are unilaterally imposed because a goods cross the border and thereby increase the price of a goods because of their border crossing. The levying of taxes that have an effect similar to customs duties is also prohibited. This applies if the levy causes a foreign product to be more expensive than a domestic one. The levying of such a charge cannot be justified, which is why its existence always constitutes a violation of Art. 30 TFEU and is therefore unlawful.

Common Customs Tariff, Art. 31 TFEU

The Council fixes the Common Customs Tariff rates on a proposal from the Commission.

According to Art. 31 TFEU, the Union determines a common customs tariff that applies to states that do not belong to the Union. This tariff was first established in 1968. The member states are therefore not allowed to set customs duties independently; this is done by the Council of the European Union .

Prohibition of quantitative import restrictions and measures having equivalent effect, Art. 34 TFEU

Quantitative import restrictions and all measures having equivalent effect are prohibited between Member States.

Art. 34 TFEU promotes the internal market by prohibiting all measures that hinder the free movement of goods between the member states. In contrast to the prohibition of customs duties, Art. 34 TFEU covers non-tariff trade barriers. Art. 34 TFEU prohibits the discrimination against foreign goods compared to goods from within Germany. In terms of the legal system, the fundamental freedom is thus an equal right . Art. 34 TFEU promotes equal treatment of the Member States in trade and the dismantling of barriers to trade. This is called negative European integration in law.

As a norm under international law , Article 34 TFEU establishes obligations exclusively between the member states. However, according to the case law of the European Court of Justice, this standard also establishes an obligation of every Member State towards its citizens. According to this, Art. 34 TFEU contains a subjective public right that allows the citizen to take legal action against the violation of Art. 34 TFEU by a sovereign. The European Court of Justice also sees in Article 34 TFEU a duty of protection for the member states in favor of the free movement of goods. From this follows an obligation for Member States to ensure that their markets allow the free movement of goods. In this respect, the fundamental freedom is comparable to a fundamental right under the Basic Law .

Addressees

The prohibition of Art. 34 TFEU is only aimed directly at sovereigns. This norm does not have a direct effect on private individuals, but it does have an indirect effect: in conjunction with the loyalty requirement of Art. 4 Paragraph 3 TEU, it obliges the member states to remove any interference with the free movement of goods by private individuals. For example, a Member State may be required to take action against targeted attacks by farmers on suppliers and sellers of foreign food. This duty finds its limits in the respect of fundamental rights. There is therefore no obligation to intervene, for example, if the impairment of the free movement of goods is triggered by people gathering in a lawful manner .

Restrictions

Art. 34 TFEU names several sovereign measures that can constitute an impermissible restriction on the fundamental freedoms: The quantitative restriction of the import and export of goods and the implementation of measures with equivalent effect.

Quantity restriction

A quantitative restriction exists when the import or export of goods is limited on the basis of a quantity criterion. This includes quotas as well as import and export bans. Such regulations no longer exist in the Union due to the clear ban.

Measure equivalent effect

The second alternative of Art. 34 TFEU is of greater practical importance than the prohibition of quantitative restrictions. This prohibits measures that have an effect comparable to quantitative restrictions.

The European Court of Justice defined the concept of a measure of equivalent effect in its Dassonville decision of 1974. In the facts on which the decision is based, a whiskey importer disputed with Belgian customs authorities about the obligation to submit certificates of origin for imported whiskey. The European Court of Justice saw in this obligation to give evidence a measure that acts like a quantitative restriction. This defined it as a measure which is suitable for directly or indirectly, actually or potentially hindering the free trade between the Member States.

Since the fundamental freedom aims to protect the internal market, it only applies in cases that have a cross-border dimension. This applies if the matter affects at least two countries. The free movement of goods therefore does not apply in cases of national discrimination . Here, a state enacts stricter regulations for its members than for foreigners.

Discriminatory measure

Measures that directly disadvantage foreign goods compared to domestic goods come into consideration as measures with equivalent effect. The European Court of Justice accepted this, for example, in a regulation from the Belgian region of Wallonia , which only allowed the dumping of waste from Wallonia.

Indirect discrimination also constitutes interference with the free movement of goods. These are measures that are not linked to the origin of the goods, but actually put foreign goods at a disadvantage. This applied, for example, to a German provision according to which only those products could be offered on the market as beer that were brewed in accordance with the Bavarian purity law . Although this regulation did not prohibit the sale of foreign beer, it was brewed according to the Purity Law much less often than German beer. The regulation therefore constituted indirect discrimination. The same applies to a regulation that only allows pharmaceuticals to be sold by companies that are domiciled in Germany.

Non-discriminatory measure

Finally, according to the Dassonville formula, such measures can also violate the free movement of goods that do not discriminate either directly or indirectly, since such measures may also be capable of impairing the free movement of goods. With this component of the Dassonville formula, the European Court of Justice expanded the prohibitions of discrimination of the fundamental freedoms into prohibitions of restrictions, which forbid any kind of restriction on the free movement of goods. This led to an extraordinarily wide scope of application of Art. 34 TFEU.

In several judgments following the Dassonville decision, the European Court of Justice recognized that the Dassonville formula was too broad and thus covered regulations that do not endanger the internal market. He therefore shortened the formula in his Keck decision of 1993. This judgment was based on a situation in which two merchants violated a national prohibition by selling goods below their purchase price and were therefore charged. The merchants objected that this ban indirectly impaired the free movement of goods, since lower sales prices led to higher sales and thus to a higher cross-border movement of goods. The European Court of Justice did not see the measure as a violation of Art. 34 TFEU, as it did not affect the cross-border movement of goods, but only the domestic distribution of goods. As this measure applied to all market participants and affected domestic and foreign goods equally, it considered them to be lawful.

According to the Keck decision, the existence of a violation of Art. 34 TFEU is initially assessed according to whether a measure discriminates directly or indirectly. If this is the case, there is a measure of equivalent effect covered by Art. 34 TFEU. Otherwise, such a measure only applies if it relates to a product. In contrast, measures that only affect the distribution of goods do not constitute interference. This regularly applies to regulations of competition law , such as the prohibition on sales below the purchase price and the obligation to sell baby milk only through pharmacies.

However, sales-related regulations exceptionally fall within the scope of the fundamental freedom if they are suitable for barring market access for products from another Member State or hindering it more than for domestic products.

Justification of a restriction

According to Art. 34 TFEU, restrictions on the free movement of goods are prohibited in principle. Exceptionally, such a measure is permissible if it is based on a justification and if the principle of proportionality is observed.

Crème de Cassis

Existence of a reason for justification

Article 36 TFEU contains some justifications . According to this, justification for reasons of public morality, order and security, for the protection of the health and life of people, animals or plants, the national cultural property of artistic, historical or archaeological value or industrial and commercial property comes into consideration.

In view of the broad understanding of the European Court of Justice of the measures with equivalent effect, the catalog of justifications of Art. 36 TFEU turned out to be too short in practice. Therefore, in the 1979 Cassis-de-Dijon decision , the court recognized that a measure having equivalent effect can also be justified by the existence of an unwritten compelling reason. The European Court of Justice specified the concept of mandatory requirement in numerous decisions. Aspects come into question that are so important that they can justify the impairment of the European internal market. In addition, they must not have any economic motivation, as these are finally regulated by Art. 36 TFEU. The European Court of Justice saw the protection of the environment , consumers and national culture as compelling reasons . Since the Cassis decision is a reaction to the inclusion of non-discriminatory measures in the scope of Article 34 TFEU, justification by unwritten compelling reasons can only be considered for measures that do not have a discriminatory effect.

Proportionality

In order for a restriction on the free movement of goods to be justified, according to the case law of the European Court of Justice, it must respect the principle of proportionality . This assumes that the measure is suitable to achieve a legitimate purpose. This is true if the measure can at least further the purpose. This is lacking, for example, when a measure is not coherent.

In addition, the measure must be necessary. This is the case when there is no milder means that is equally suitable for achieving the end. The European Court of Justice attaches great importance to this component of the proportionality test.

Art. 36 sentence 2 TFEU prohibits measures that arbitrarily discriminate or disguise trade restrictions. In jurisprudence it is controversial to what extent this requirement has an independent meaning alongside the principle of proportionality. Some voices assume that the types of interference mentioned are sub-cases of disproportionate measures. Others may assume that a measure that arbitrarily discriminates or disguises trade restrictions is illegal even if it respects the general requirements of proportionality.

Prohibition of quantitative export restrictions and measures having equivalent effect, Art. 35 TFEU

Quantitative export restrictions and all measures having equivalent effect are prohibited between Member States.

Parallel to Art. 34 TFEU, Art. 35 TFEU prohibits quantitative export bans and measures with equivalent effect. There is a difference to Art. 34 TFEU with regard to the interpretation of the term measures having equivalent effect . The European Court of Justice determines its content in the starting point on the basis of the Dassonville formula, but only considers measures that are specifically limited to the export of goods as a matter of fact. Otherwise almost every norm relating to the production or distribution of goods would fall under Art. 35 TFEU.

If a measure falls under Art. 35 TFEU, it can be justified by Art. 36 TFEU or mandatory requirements.

Transformation of state trade monopolies, Art. 37 TFEU

(1) The Member States shall reform their state trade monopolies in such a way that any discrimination in terms of supply and sales between the nationals of the Member States is excluded.

This Article applies to any body through which a Member State directly or indirectly controls, directs or significantly influences imports or exports between Member States. It also applies to monopolies transferred from one state to other legal entities.

2. Member States shall refrain from any new measure which is contrary to the principles referred to in paragraph 1 or which restricts the scope of the articles on the prohibition of customs duties and quantitative restrictions between Member States.

(3) If a state trade monopoly is associated with a regulation to facilitate the sale or exploitation of agricultural products, equivalent guarantees for the employment and livelihood of the producers concerned should be guaranteed when applying this article.

Art. 37 (1) TFEU obliges the member states of the Union to redesign their existing trade monopolies in such a way that they do not discriminate against members of the member states. This is intended to ensure that state monopolies, which are manifested, for example, in exclusive import rights, do not endanger the free internal market. The existing member states have already reshaped their monopolies, which is why Art. 37 TFEU is primarily important when new states join the Union.

Web links

Individual evidence

  1. ↑ Astrid Epiney: § 11 , Rn. 6. In: Roland Bieber, Astrid Epiney, Marcel Haag, Markus Kotzur (eds.): The European Union . 12th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2938-8 .
  2. ↑ Werner Schroeder : Art. 34 , Rn. 19. In: Rudolf Streinz (Ed.): EUV, AEUV: Treaty on European Union and Treaty on the Functioning of the European Union . 2nd Edition. CH Beck, Munich 2012, ISBN 978-3-406-60254-2 .
  3. ↑ ECJ, judgment of December 16, 2010, C-137/09 = Collection 2010, I-13019 (Josemans).
  4. ↑ Astrid Epiney: § 11 , Rn. 16. In: Roland Bieber, Astrid Epiney, Marcel Haag, Markus Kotzur (eds.): The European Union . 12th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2938-8 .
  5. ^ Waltraud Hakenberg: European law . 7th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4943-3 , Rn. 327-328.
  6. ^ Waltraud Hakenberg: European law . 7th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4943-3 , Rn. 329
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  8. ^ A b Waltraud Hakenberg: European law . 7th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4943-3 , Rn. 335.
  9. ↑ Heiko Sauer: The fundamental freedoms of Union law . In: Juristische Schulung 2017, p. 310 (311-312).
  10. ↑ Thorsten Kingreen: Art. 36 , Rn. 2. In: Christian Calliess, Matthias Ruffert (eds.): EUV / AEUV: the constitutional law of the European Union with the European Charter of Fundamental Rights: Commentary . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-68602-3 .
  11. ↑ Heiko Sauer: The fundamental freedoms of Union law . In: Juristische Schulung 2017, p. 310 (312).
  12. ↑ Thorsten Kingreen: Art. 36 , Rn. 9-15. In: Christian Calliess, Matthias Ruffert (eds.): EUV / AEUV: the constitutional law of the European Union with a European Charter of Fundamental Rights: Commentary . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-68602-3 .
  13. ↑ Mark Kenntner: basic cases for the free movement of goods . In: Juristische Schulung 2004, p. 22 (23).
  14. ↑ Astrid Epiney: § 11 , Rn. 29-30. In: Roland Bieber, Astrid Epiney, Marcel Haag, Markus Kotzur (eds.): The European Union . 12th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2938-8 .
  15. ↑ ECJ, judgment of December 9, 1997, C-265/95 = Collection 1997, I-6959 (Commission / France).
  16. ↑ ECJ, judgment of June 12, 2003, C-112/00 = Collection 2003, I-5659 (Schmidberger).
  17. ↑ Astrid Epiney: § 11 , Rn. 34. In: Roland Bieber, Astrid Epiney, Marcel Haag, Markus Kotzur (eds.): The European Union . 12th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2938-8 .
  18. ↑ Werner Schroeder: Art. 34 , Rn. 32. In: Rudolf Streinz (Hrsg.): EUV, AEUV: Treaty on European Union and Treaty on the Functioning of the European Union . 2nd Edition. CH Beck, Munich 2012, ISBN 978-3-406-60254-2 .
  19. ↑ ECJ, judgment of July 11, 1974, 8/74 = Sammlung 1974, p. 837 (Dassonville).
  20. ↑ Thorsten Kingreen: Art. 36 , Rn. 38-40. In: Christian Calliess, Matthias Ruffert (eds.): EUV / AEUV: the constitutional law of the European Union with a European Charter of Fundamental Rights: Commentary . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-68602-3 .
  21. ^ Walter Frenz: European fundamental freedoms . 2nd Edition. Springer, Heidelberg 2012, ISBN 978-3-642-24640-1 , Rn. 744
  22. ↑ ECJ, judgment of July 9, 1992, C-2/90 = Sammlung 1992, I-4431 (Walloon waste).
  23. ↑ ECJ, judgment of March 12, 1987, 178/84 = Collection 1987, p. 1227.
  24. ↑ ECJ, judgment of February 28, 1984, 247/81 = Collection 1984, 1111 (Commission / Germany).
  25. ^ Waltraud Hakenberg: European law . 7th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4943-3 , Rn. 348, 357.
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  27. ↑ a b ECJ, judgment of November 24, 1993, C-267, 268/91 = Collection 1993, I-6097 (Keck / Mithouard).
  28. ^ Waltraud Hakenberg: European law . 7th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4943-3 , Rn. 351
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  30. ↑ ECJ, judgment of February 20, 1979, 120/78 = Sammlung 1979, 649 (Cassis de Dijon).
  31. ↑ ECJ, judgment of September 20, 1988, 302/86 = Sammlung 1988, 4607 (Commission / Denmark).
  32. ↑ ECJ, judgment of July 11, 1985, 60/84, 61/84 = Collection 1985, 2605 (Cinéthèque).
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  34. ↑ ECJ, judgment of July 10, 1980, 152/78 = Collection 1980, p. 2299.
  35. ↑ ECJ, judgment of March 11, 1986, 121/85 = Sammlung 1986, 1007 (Conegate).
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  37. ↑ Thorsten Kingreen: Art. 36 , Rn. 101-103. In: Christian Calliess, Matthias Ruffert (eds.): EUV / AEUV: the constitutional law of the European Union with a European Charter of Fundamental Rights: Commentary . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-68602-3 .
  38. ↑ Astrid Epiney: § 8 , Rn. 94. In: Dirk Ehlers (Ed.): European fundamental rights and fundamental freedoms . 4th edition. De Gruyter, Berlin 2014, ISBN 978-3-11-036315-9 .
  39. ^ Walter Frenz: Handbuch Europarecht: Volume 1: European fundamental freedoms . Springer, Berlin 2012, ISBN 978-3-642-24641-8 , Rn. 1226.
  40. ↑ ECJ, judgment of November 8, 1979, 15/79 = Sammlung 1979, 3409 (Groenveld).
  41. ^ Waltraud Hakenberg: European law . 7th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4943-3 , Rn. 368.